View
1
Download
0
Category
Preview:
Citation preview
Let’s Talk: ELDER ABUSE Facilitator’s Guide
The contents of this booklet are provided as general information only. It is not legal advice. If you have a legal problem, you should consult a lawyer.
The information contained in this booklet was correct at the time it was printed. Be aware that there may have been subsequent changes that make the information outdated at the time you are reading it. Legal Resource Centre of Alberta will not be responsible for any loss arising from reliance on or action taken (or not taken) as a result of this information.
We would also like to thank the Alberta Law Foundation and the Department of Justice Canada for providing operational funding, which makes all of our projects possible.
Production of this booklet has been made possible by a financial contribution from Human Resources and Skills Development Canada.
Legal Resource Centre of Alberta Ltd. is operating as the Centre for Public Legal Education Alberta (CPLEA). CPLEA is a non-profit organization whose mission is to help people understand the law as it affects their everyday lives. We develop plain language booklets, presentations, and other learning materials to help people recognize and respond to their legal rights and responsibilities. We have a variety of programs, and provide legal information and referral on many legal topics. For more information, please go to www.cplea.ca.
© March 2015, Legal Resource Centre of Alberta Ltd., Edmonton, Alberta
March 2015 Legal Resource Centre Let’s Talk: ELDER ABUSE Facilitator’s Guide
Table of ContentsAudience ..................................................................................................................................................................... 2
Workshop Content .................................................................................................................................................... 2Module 1: Elder Abuse, Capacity, and the Law ....................................................................................................................2Module 2: Planning Ahead ...........................................................................................................................................................2Module 3: Let’s Talk .........................................................................................................................................................................3
Presentation Planning .............................................................................................................................................. 3 > Full-day ............................................................................................................................................................................................3 > Half-day ..........................................................................................................................................................................................4 > Stand-alone ...................................................................................................................................................................................4
Preparing .............................................................................................................................................................................................4Presenting ...........................................................................................................................................................................................4Session Plan Module 1: Elder Abuse, Capacity, and the Law .........................................................................................5Session Plan Module 2: Planning Ahead ................................................................................................................................6Session Plan Module 3: Let’s Talk ..............................................................................................................................................6
Appendix ......................................................................................................................................................................7
Elder Abuse Defined ................................................................................................................................................ 8
Alberta Laws Concerning Elder Abuse ..................................................................................................................11
Mental Capacity and Elder Abuse ........................................................................................................................12
When Elder Abuse Involves the Police ................................................................................................................15
Elder Abuse: Planning Ahead ................................................................................................................................ 17
Capacity Matters—Elements of Legal Tools ...................................................................................................... 20
Elder Abuse: If Plans Haven’t Been Made .......................................................................................................... 23
Elder Abuse: Let’s Talk ........................................................................................................................................... 25
Let’s Talk: ELDER ABUSE Facilitator’s Guide 2 March 2015 Legal Resource Centre
This Facilitator’s Guide is accompanied by
> Let’s Talk: Elder Abuse Resource Manual—for participants, who also receive a full set of TipSheets
> PowerPoint presentations—one for each Module
> TipSheets—included in an appendix to this Facilitator’s Guide
AudienceYou will be facilitating a workshop on a topic of interest and concern to many. The audience for your sessions is assumed to be people who routinely work or volunteer with seniors. Tread carefully; there may be an older adult in attendance who has been or is being abused.
Workshop ContentModule 1: Elder Abuse, Capacity, and the Law
Abuse as a topic of discussion: begins with examples (as an icebreaker and “this is why you need to care”) and moves into the introduction of terms; clarifies definition of capacity (what brings us to this place) and then the law (which laws concern us and why). 2-hour session.
1.1 Elder Abuse > Discussing who’s at risk and how abuse presents itself
1.2 Capacity > How capacity is defined; who decides capacity; and how incapacity is recognized
1.3 The Law > How the laws come to us; the variety and types of laws that govern our behaviour; the court system; the laws that help to avoid or stop abuse; and how law enforcement can assist to keep seniors safe
Module 2: Planning Ahead
Steps that can and should be taken to prevent opportunities for abuse and some instances of what happens without certain instruments in place. 3-hour session.
2.1 Planning While There’s Still Capacity
> Legal tools that can be set up by the older adult before his/her incapacity, and which are also to be used before incapacity
> Joint property, supported decision-making, co-decision-making, informal trusteeships.
March 2015 Legal Resource Centre 3 Let’s Talk: ELDER ABUSE Facilitator’s Guide
2.2 Planning for Incapacity
> Legal tools that are set-up by the older adult before his/her incapacity, but which are to be used only after incapacity
> Powers of Attorney, Personal Directives
> Wills, which are set up by the older adult before incapacity, only to be used after that adult’s death.
2.3 When Incapacity Is Not Planned For
> Legal tools set-up by other people (i.e., not the older adult) after the older adult’s incapacity, to be used during the remainder of incapacity
> Trusteeship, Guardianship
2.4 Opportunities for Abuse Both Pre- and Post-Incapacity
> Access to grandchildren, pets, and housing
Module 3: Let’s Talk
Part of planning ahead, but an elaboration of what needs to be discussed between older adults, their families, and their caregivers. 1- or 1.5-hour session.
3.1 Getting Past Resistance
> Discussing the reasons for not wanting to talk about a time of incapacity and how to overcome them.
3.2 Opening Communication
> Discussing the reasons why it is important to have open discussion, and setting things in place
3.3 Beginning the Conversation
> Agenda setting and then beginning a conversation that may unfold over an extended period, depending on the circumstances.
Presentation PlanningThese modules can be used in full and in this sequence in a one-day workshop; see the Full-Day Session following. If you are preparing for a half-day workshop, you may want to handle the modules out of sequence as suggested in the Half-Day Session below. You may also choose to use each module separately (and preferably sequentially); if so, begin by reading the proposed structure for the Stand-Alone Sessions.
Full-DayThe three modules can be offered in a one-day workshop. See the session plans for each module presented in the following pages. Use the PowerPoint modules in succession.
Let’s Talk: ELDER ABUSE Facilitator’s Guide 4 March 2015 Legal Resource Centre
Half-DayOffering a half-day session requires careful planning and some trimming of the content. You may not have the time for participants to have all the small group discussions suggested. You may choose to offer Modules 1 and 3 together in one half-day (three-hour) session and/or Module 2 in another half-day session. If presenting Modules 1 and 3 together, you will have to keep close watch on the timing of discussion in Module 3.
Stand-AloneOffering only one module or the three modules in individual sessions allows you to spend time on parts of the modules of most importance to your participants.
Preparing
Begin by reviewing the TipSheets, the Let’s Talk: Elder Abuse Resource Manual, and the PowerPoint presentations. Facilitator notes in the three PowerPoint presentations provide suggestions on how to lead discussion throughout the sessions and sometimes offer additional prompts. Reviewing them in advance will help you shape the sessions and engage the participants. They are not intended as a script.
Rehearsing the PowerPoint presentation will also demonstrate some of the onscreen animations (when items appear and disappear by click; how ideas build on the screen) and transitions between slides.
You can, of course, personalize the session plans and PowerPoint modules to make them your own. What’s suggested can serve as a guide to your presentation.
You will see that the story of Linda and Fred is woven throughout the three modules. Only brief mention is made in Module 1 and it may not be necessary to introduce the whole family. You can share details of the family on a need-to-know basis; their full story is told in Module 3.
Presenting
You are encouraged to use PowerPoint’s “Presenter View” on your computer when presenting the workshops. Having reviewed the facilitator notes there, you can now use them as reminders on how to guide discussion and highlight content in the Let’s Talk: Elder Abuse Resource Manual.
In many cases, the PowerPoint slides offer a condensed version of the text from the Let’s Talk: Elder Abuse Resource Manual. The manual should be seen as the source of discussion, while the PowerPoint slides serve as summaries.
March 2015 Legal Resource Centre 5 Let’s Talk: ELDER ABUSE Facilitator’s Guide
Session Plan Module 1: Elder Abuse, Capacity, and the Law
Suggested Time
Facilitator’s Agenda PPT Slides
Notes
5 min Introduction of self and general outline 1
10 min 1.1 Small group work on “Is it abuse?” 2
10 min Review “Is It Abuse?”— each case, ending with definition.
3–8
5 min Who’s at risk? 9
15 min What is abuse? Review of types, examples, and indicators.
10–15
15 min 1.2 Why does capacity matter? Definition and “shades” of capacity.
16–19
10 min Who decides? Review role of lawyer, doctor, and assessor.
20
5 min Where does it say so? Review of incapacity forms 21
5 min 1.3 Where is the law? 22–25
15 min Laws that help to avoid or stop abuse. Identify pertinent laws and how they relate to the matter of elder abuse, assuring understanding of abuse, capacity, and source and jurisdiction of the law.
26–27
15 min Law enforcement in the form of help from the police 28–34
5 min Wrap-up 35–38
2 hours
Let’s Talk: ELDER ABUSE Facilitator’s Guide 6 March 2015 Legal Resource Centre
Session Plan Module 2: Planning Ahead
Suggested Time
Facilitator’s Agenda PPT Slides
Notes
10 min Introduction of self (unless following immediately after Module 1) and general outline
1-2
45 min 2.1 Planning while there’s still capacity 3-12
45 min 2.2 Planning for incapacity 13-35
45 min 2.3 When incapacity is not planned for 36-41
10 min 2.4 Opportunities for abuse before and after 42-46
10 min Wrap-up 47-50
3 hours
Session Plan Module 3: Let’s Talk
Suggested Time
Facilitator’s Agenda PPT Slides
Notes
5 min Introduction of self (unless following immediately after Module 2) and general outline
1-2
5-10 min 3.1 Getting past resistance 3
15-20 min 3.2 Communication 4-6
15-20 min 3.3 The conversation begins… 7-22
15-20 min Is it or isn’t it? Meet Linda and Fred 23-27
5-15 min Wrap up (questions, review, summary, evaluation) 28-31
1 to 1.5 hours
March 2015 Legal Resource Centre 7 Let’s Talk: ELDER ABUSE Facilitator’s Guide
APPENDIX
Tip Sheets1. Elder Abuse Defined
2. Mental Capacity and Elder Abuse
3. Alberta Laws Concerning Elder Abuse
4. When Elder Abuse Involves the Police
5. Elder Abuse: Planning Ahead
6. Capacity Matters: Elements of Legal Tools
7. Elder Abuse: If Plans Haven’t Been Made
8. Elder Abuse: Let’s Talk
ELDER ABUSE DEFINED March 2015 Legal Resource Centre of Alberta Ltd.
Elder Abuse Defined
Any deliberate action or lack of action that causes harm to an older adult is elder abuse.
Who’s at risk?
Every case is unique, with different facts. Risk factors are many and various, possibly including:
> a history of abuse between family members
> dependency, e.g., being dependent on other family members
> stress, caused by various factors
> alcohol or drug use
> greed
> lack of knowledge about the degree of care and needs of an older person
> lack of respect given to older people in a society that values youth, self-reliance, and energy
> lack of professional awareness about the problem of elder abuse, so that it might continue undetected
What Is Abuse? Types, Examples, and Indicators
Physical Abuse
Examples Indicators
› pushing
› pulling
› threatening
› confining
› failing to provide
› forcing or withholding medication
› forced sexual activity
› unexplained injuries; rope or belt marks; injury to scalp
› frequent medical visits or delay in seeking treatment
› history of accidents or injuries; repeated falls
› depression, fear
› signs of anxiety
NOTE: Some of these indicators may be present and the older adult is not being abused; these are merely possible examples and indicators of abuse.
Financial and/or Material Abuse
Examples Indicators
> stealing
> forcing to change a will
> misusing credit cards
> forging a signature
> withholding money
> forcing or tricking
> pressuring
> refusing to return money or property
> abusing powers
> confused about finances
> signing a document without knowing the consequences
> lack of financial choices
> family members moving in
> unusual bank or ATM activity
> income and standards misfit
> possessions disappearing
> sudden difficulty in paying bills
> refusing to spend money without “permission”
NOTE: Some of these indicators may be present and the older adult is not being abused; these are merely possible examples and indicators of abuse.
ALSO NOTE: These actions may or may not be happening at the same time as other abuse (e.g., physical or psychological). The abuser could be perfectly pleasant and claiming to act in the older adult’s best interest while taking advantage of him/her financially. It may take some time before anyone realizes what is happening, and the older adult may be the only one who sees it.
Psychological Abuse
Examples Indicators
> making threats
> eroding self-esteem
> yelling or scolding
> manipulating
> forcing socialization or isolation
> treating someone like a child
> refusing access
> not allowing someone to make decisions
> becoming withdrawn, agitated, depressed
> unusual weight gain or loss
> unexplained paranoia
> reluctance to talk openly
> making inconsistent statements
> appearing nervous
> waiting for caregiver to respond
> noticeable behaviour changes
> low self-esteem
> sleeping or not
> making excuses
NOTE: Some of these indicators may be present and the older adult is not being abused; these are merely possible examples and indicators of abuse.
ELDER ABUSE DEFINED March 2015 Legal Resource Centre of Alberta Ltd.
Neglect and/or Self-Neglect Abuse
Examples Indicators
> withholding care
> failing to provide
> inadequate supervision, lack of safety precautions
> withholding medical services
> unattended or restrained over time
> failing companionship, social interaction, or intellectual stimulation
> malnutrition, dehydration
> not meeting necessities of life
> medical treatment withheld
> pattern of cancellations; avoiding appointments
> lack of access to care
> lack of required aids; lack of safety features
> left alone
> signs of being tied up
> poorly maintained living space
> untidy appearance; poor hygiene, unpleasant odour
NOTE: Some of these indicators may be present and the older adult is not being abused; these are merely possible examples and indicators of abuse.
Medication Abuse
Examples Indicators
> misuse of medications, prescriptions or mood altering substances
> over-medication
> not providing adequate or appropriate medication when needed or when prescribed
> reduced activity
> unusual behaviour
> failure to fill prescriptions
> reduced beneficial response from medications
> depression
> making inconsistent statements
> appearing confused
NOTE: Some of these indicators may be present and the older adult is not being abused; these are merely possible examples and indicators of abuse.
ADDITIONAL RESOURCES ON ELDER ABUSE
› The Centre for Public Legal Education Alberta has several resources on elder abuse. See the Oak-Net website at www.oaknet.ca/abuse.
ELDER ABUSE DEFINED March 2015 Legal Resource Centre of Alberta Ltd.
Alberta Laws Concerning Elder Abuse The main pieces of Alberta and federal legislation that relate most closely to elder abuse are:
Adult Guardianship and Trusteeship Act > standardizes issues around capacity assessment and allows for a range of decision-making options. These options recognize that adults have different levels of decision-making ability and that an adult’s capacity may change over time.
> options range from supported decision-making authorizations to guardianship and trusteeship orders.
> Learn more at www.oaknet.ca/agta.
Family Law Act > provides a way to apply for a Support Order in cases of neglect
> Learn more at www.oaknet.ca/neglect #SupportOrders.
Mental Health Act > does not specifically deal with elder abuse, but occasionally is used to remove a senior from an abusive situation if a police officer sees someone acting in a disorderly or dangerous manner who appears to have a mental disorder.
> used only in extreme situations when the abuser is not mentally competent.
Personal Directives Act > allows people to create a legal document setting out their wishes for personal care after they are no longer able to make those decisions for themselves.
> Learn more about Personal Directives at www.oaknet.ca/node/60.
Powers of Attorney Act > allows people to create a legal document appointing someone to manage their financial assets.
> may or may not extend past incapacity.
> Learn more about Powers of Attorney at www.oaknet.ca/content/power-attorney.
Protection Against Family Violence Act > protects all family members who are victims of family violence
> makes three kinds of protective tools available: Emergency Protection Orders, Queen’s Bench Protection Orders, and Warrant Permitting Entry.
> Outside of this Act, Restraining Orders and Peace Bonds can stop an abusive person from contacting an older adult.
> Learn more about these orders and how to apply for them at www.oaknet.ca/orders.
Protection of Persons in Care Act > promotes the safety of adults in publicly funded care.
> among other specifications, service providers must take reasonable steps to protect clients from abuse, while providing care or support services.
> More information can be found at www.health.alberta.ca/documents/ PPC-Understand-PPCA.pdf.
ALBERTA LAWS CONCERNING ELDER ABUSE March 2015 Legal Resource Centre of Alberta Ltd.
ALBERTA LAWS CONCERNING ELDER ABUSE March 2015 Legal Resource Centre of Alberta Ltd.
Criminal Code of Canada
Some criminal offences under the Criminal Code apply to different types of elder abuse:
Physical
> Assault (common assault, assault with a weapon or causing bodily harm, aggravated assault, and sexual assault)
> Forcible confinement
> Murder and/or manslaughter
> Administering a noxious substance
> Counselling suicide
Financial:
> Theft, including theft by a person holding Power of Attorney, and theft with a credit card
> Fraud and fraud with a credit card
> Robbery
> Breaking and entering
> Forgery and using forged documents
> Extortion
> Stopping mail with intent
> Criminal breach of trust and conversion by a trustee
Psychological
> Intimidation
> Uttering threats
> Harassing telephone calls
> Criminal harassment (i.e., stalking)
Neglect
> Criminal negligence causing bodily harm
> Breach of duties to provide necessities of life
For background on the Alberta Court System, visit justice.alberta.ca/programs_services/courts/Pages/chart_courts_alberta.aspx
MENTAL CAPACITY AND ELDER ABUSE March 2015 Legal Resource Centre of Alberta Ltd.
Mental Capacity and Elder Abuse
Mental capacity is the ability to understand and appreciate the nature and consequences of one’s decisions.
All legal adults (age 18+ in Alberta) are presumed to have mental capacity unless and until established otherwise, as required by law (usually by medical opinion and/or a judge’s decision).
When we use the law as a tool against abuse, the capacity of the person being abused is a key factor in determining the options that are available.
Before losing capacity, an older adult can decide:
> to share personal decision-making with someone
> to share financial decision-making with someone
> who will make personal decisions on his/her behalf after a loss of capacity
> who will make financial decisions on his/her behalf after a loss of capacity
If an older adult loses capacity before these decisions have been made:
> legal processes must be followed to determine who will make decisions on his/her behalf.
From Black and White to a Continuum
Legally, mental capacity is a black and white concept—according to the law, you are capable or you are not capable.
In day-to-day life, however, capacity is more of a continuum—clear capacity to make a decision at one end and the clear incapacity to make a decision at the other end, with a range in between.
Factors affecting capacity can be influenced by:
> a medical condition
> stress and/or anxiety in difficult circumstances (e.g., abuse) or events (e.g., death of a family member)
> the effect of medication and/or forgetting to take medication
> exhaustion and time of day
> diabetes and fluctuating blood sugar levels
> alcohol and recreation drug use
MENTAL CAPACITY AND ELDER ABUSE March 2015 Legal Resource Centre of Alberta Ltd.
Who Determines Capacity?
Lawyers > Will ask questions to ensure that the person understands what he/she is signing.
> Speak only to capacity at that very moment.
> Do not sign any document indicating that the person has or has lost capacity.
Doctors > Determine whether a person has mental capacity.
> Alberta Personal Directives Act prescribes a “Declaration of Incapacity” form that must be used to officially deem a person “incapable” of making personal decisions.
> Declaration of Incapacity must be filled out and signed by one or two medical professionals, depending on the Personal Directive.
> May make declarations of incapacity regarding Enduring Powers of Attorney.
Capacity Assessors > Determine capacity based on Capacity Assessment Process legislated in the Alberta Adult Guardianship and Trusteeship Act
> CAP provides a very specific method of determining an adult’s cognitive and functional capacity.
> CAP can be used at any time a decision about capacity is required.
> Capacity Assessors may include medical practitioners (e.g., doctors), psychologists, registered nurses of various specialties, occupational therapists, and social workers, who meet established standards of conduct and undergo training and continuing education.
Incapacity: Where Does It Say So?
> Alberta Personal Directives Act’s prescribed Declaration of Incapacity Form is used to activate a Personal Directive for personal decisions only.
> Alberta Powers of Attorney Act does not prescribe a declaration form for the purposes of indicating when a Power of Attorney comes into effect for making someone’s financial decisions.
> In the absence of such a form, options include:
- asking the doctor to create a Declaration of Incapacity form
- asking a social worker (who sometimes has a template)
- asking a lawyer to create a Declaration of Incapacity form
- using a designated Capacity Assessor
ADDITIONAL RESOURCES ON CAPACITY
› Guardianship CPLEA’s booklet on the Alberta Adult Guardianship and Trusteeship Act.
› Trusteeships and Guardianships www.humanservices.alberta.ca/guardianship-trusteeship/opg-adult-guardianship-trusteeship.html
› Personal Directives www.humanservices.alberta.ca/guardianship-trusteeship/opg-personal-directives.html
When Elder Abuse Involves the PoliceCalling the police is an important way for the abused older adult to be protected and one way to prevent future occurrences.
Making a Criminal Complaint
The police may proceed as follows:
> investigate the complaint
> interview the abused person and possibly family members, caregivers, and neighbours who have evidence about the incident
> may also interview the alleged abuser
> gather evidence that is relevant to the complaint
> may lay charges against the alleged abuser
Even if not for a criminal matter, the police can be very helpful in connecting seniors to various supports in the community—making referrals to other agencies as needed.
Victims’ Services
> provide information
> offer practical assistance
> extend emotional support
> help communicate the victim’s needs and concerns to the police or Crown Counsel
Laying charges
> After the statement is completed, police will investigate the complaint.
> If deemed a crime, police prepare a “Report to Crown Counsel” (RTCC).
> Crown counsel reviews RTCC and decides whether to charge the accused with a crime.
> With sufficient evidence, an information will be laid and the police will arrest the suspected offender.
The Accused
When an accused is arrested, the police will either
> keep that person in custody or > let the person go on bail
WHEN ELDER ABUSE INVOLVES THE POLICE March 2015 Legal Resource Centre of Alberta Ltd.
The Process
Three types of criminal offences:
> summary offences
> indictable offences and > a hybrid of summary and indictable offences
Summary OffencesThese kinds of offences can be tried only in Provincial Court and include most minor offences in the Criminal Code, for example, harassing telephone calls.
Indictable OffencesThese kinds of offences carry more severe penalties than summary offences. Examples include murder, manslaughter, and aggravated assault.
Summary or Indictable (“Hybrid”) Offences For these offences, the Crown will choose whether the offence is tried summarily or on indictment.
> If the Crown proceeds by way of indictment, the accused can then elect the mode of trial (jury or judge), as in the indictable option above.
ADDITIONAL RESOURCES ON ALBERTA LAW
› More information about abuse of older adults, including links to related websites, can be found on Oak-Net at www.oaknet.ca/abuse
WHEN ELDER ABUSE INVOLVES THE POLICE March 2015 Legal Resource Centre of Alberta Ltd.
Elder Abuse: Planning Ahead Several legal tools can be set up by the older adult before his/her incapacity that take effect immediately:
> joint property (bank accounts and real property)
> supported decision-making
> co-decision-making
> informal trusteeships
> Wills
Joint Property (Bank Accounts and Real Property)
Use with caution. Remember that joint bank accounts and joint title on real estate mean all signing parties own the money or property equally. If one party dies, the survivor continues to fully own the account or property.
Supported Decision-Making
A supported decision-making arrangement could be very helpful for:
> capable individuals who face complex personal decision-making
> people who have difficulty communicating in English
> people with mild disabilities such as hearing loss or mobility issues
> people who have other communication difficulties
> people who—due to a temporary condition—may only need a bit of help for a little while.
To complete such an arrangement, the older adult and the person who will be his/her supporter must:
> agree on the need for the arrangement and
> sign a Supported Decision-Making Authorization form that outlines the purpose and the kinds of decisions the older adult wishes to include.
Co-Decision-Making
A Co-Decision-Making Order is helpful for adults who:
> have difficulty making personal decisions on their own but could make such decisions with the guidance and support of another person
> have a close relationship with someone willing to provide decision-making support
> do not have a guardian or a Personal Directive.
FOR MORE INFORMATION
For more information on supported decision-making and co-decision-making in Alberta:
› contact the Alberta Office of the Public Guardian
› read CPLEA’s booklet about the Alberta Adult Guardianship and Trusteeship Act.
ELDER ABUSE: PLANNING AHEAD March 2015 Legal Resource Centre of Alberta Ltd.
Informal Trusteeships
An informal trusteeship is helpful for adults who:
> may have diminished capacity, but could make financial decisions with the guidance and support of another person
> have a close relationship with someone willing to provide financial decision-making support
Informal trusteeships are available at various service agencies:
> Separate paperwork for a trusteeship needs to be completed at each agency or government department that allows for such an arrangement.
> Federal government programs that allow for informal trusteeships are Canada Pension Plan (CPP), Old Age Security (OAS), and Veterans’ Affairs.
> In Alberta, informal trusteeships can be arranged through Assured Income for the Severely Handicapped (AISH), Alberta Seniors’ Benefit, and the ministry responsible for employment and immigration.
> Some care facilities may also allow informal trusteeships.
How to Prevent Misuse and Abuse > Carefully consider the options.
> Choose assistance cautiously.
> If a joint situation is a must, can you place limits?
> Are these the best options for you at this time?
> Can the bank or lawyer suggest other convenient options?
> Research which agencies and government departments offer informal trusteeships and look into their procedures.
> Consider including all reporting requirements.
> If you think someone is being abused, trust your instincts and seek help.
Wills
Understanding the law around Wills can help older adults take steps to prevent abuse from happening. For more information, see CPLEA’s publications on Wills.
How to Prevent Misuse and Abuse > Write a Will while you still have mental capacity.
> Consult a lawyer.
> Choose executors wisely.- Is the person willing to take on the job
of executor?- Is the person trustworthy, responsible,
and good at handling financial matters?
> Keep the Will in a safe place or with a trustworthy person.
> Be sure that the executor knows where the Will is.
> Be wary of any suggestions that you change your Will.
ELDER ABUSE: PLANNING AHEAD March 2015 Legal Resource Centre of Alberta Ltd.
CA
PAC
ITY
MAT
TERS
—ELE
MEN
TS O
F LE
GA
L TO
OLS
M
arch
20
15 L
egal
Res
ourc
e Ce
ntre
of A
lber
ta L
td.
Cap
acity
Mat
ters
—Ele
men
ts o
f Leg
al T
ools
Why
Form
aliti
esCa
paci
tyW
ho D
ecid
esO
ther
D
ecis
ion-
Mak
ers
Dur
atio
n
Power of Attorney (PoA)
To h
andl
e th
e do
nor’s
fin
anci
al a
ffai
rs. I
t m
ay b
e to
han
dle
a sp
ecifi
c ta
sk, f
or a
pre
-de
term
ined
am
ount
of
tim
e, o
r be
gene
ral
in n
atur
e.
Writ
ten,
sig
ned,
da
ted,
and
witn
esse
d.
The
pers
on n
amed
as
the
atto
rney
or
that
per
son’s
spo
use
cann
ot b
e a
witn
ess,
no
r can
the
spou
se o
f th
e do
nor.
The
dono
r mus
t hav
e fu
ll m
enta
l cap
acity
.Th
is ty
pe o
f PoA
is
null
and
void
as
soon
as
the
dono
r los
es
men
tal c
apac
ity.
The
PoA
may
con
tain
an
end
dat
e or
be
valid
onl
y to
han
dle
a ce
rtai
n tr
ansa
ctio
n. It
w
ill b
ecom
e nu
ll an
d vo
id if
the
dono
r los
es
men
tal c
apac
ity.
Enduring Power of Attorney–Immediate
To p
rovi
de th
e do
nor w
ith a
trus
ted
pers
on to
han
dle
his/
her f
inan
cial
aff
airs
im
med
iate
ly a
nd to
co
ntin
ue in
to th
e fu
ture
, aft
er th
e do
nor
lose
s m
enta
l cap
acity
.
Writ
ten,
sig
ned,
da
ted,
and
witn
esse
d.
The
pers
on n
amed
as
the
atto
rney
or
that
per
son’s
spo
use
cann
ot b
e a
witn
ess,
no
r can
the
spou
se o
f th
e do
nor.
This
PoA
m
ust s
tate
that
it is
to
cont
inue
rega
rdle
ss o
f an
y m
enta
l inc
apac
ity
or in
firm
ity o
n th
e pa
rt
of th
e do
nor.
The
dono
r mus
t hav
e ca
paci
ty a
t the
tim
e th
e En
durin
g Po
A
is s
igne
d. It
take
s ef
fect
imm
edia
tely
an
d co
ntin
ues
afte
r ca
paci
ty is
lost
.
The
dono
r can
nam
e a
pers
on o
r per
sons
to
deci
de a
bout
men
tal
inca
paci
ty, i
nclu
ding
th
e pe
rson
nam
ed
as th
e at
torn
ey. H
e/sh
e or
they
mus
t sig
n a
writ
ten
decl
arat
ion
that
the
spec
ified
ev
ent h
as o
ccur
red.
If no
one
is n
amed
to
dete
rmin
e in
capa
city
or
the
pers
ons
nam
ed c
anno
t or
are
inca
pabl
e of
de
term
inin
g m
enta
l ca
paci
ty, t
hen
two
med
ical
pra
ctiti
oner
s m
ay d
ecla
re in
writ
ing
that
the
spec
ified
ev
ent h
as o
ccur
red.
The
Endu
ring
PoA
w
ill c
ontin
ue u
ntil
the
dono
r rev
okes
it, i
f stil
l m
enta
lly c
apab
le, o
r if
the
dono
r or a
ttor
ney
dies
, or i
f the
att
orne
y be
com
es th
e su
bjec
t of
a tr
uste
eshi
p or
der.
Als
o, a
ny in
tere
sted
pa
rty
may
app
ly to
th
e co
urt f
or a
n or
der
endi
ng a
n En
durin
g Po
A.
Why
Form
aliti
esCa
paci
tyW
ho D
ecid
esO
ther
D
ecis
ion-
Mak
ers
Dur
atio
nEnduring Power of Attorney–“Springing”
To p
rovi
de th
e do
nor
with
a tr
uste
d pe
rson
to
han
dle
finan
cial
af
fairs
onl
y w
hen
the
dono
r bec
omes
in
capa
cita
ted
at s
ome
futu
re ti
me.
Writ
ten,
dat
ed, s
igne
d,
and
witn
esse
d. T
he
pers
on n
amed
as
the
atto
rney
, tha
t per
son’s
sp
ouse
, and
the
spou
se o
f the
don
or
cann
ot b
e a
witn
ess.
Th
is P
oA m
ust s
tate
th
at it
is o
nly
to s
prin
g in
to e
ffec
t on
the
men
tal i
ncap
acity
of
the
dono
r or s
ome
othe
r spe
cifie
d ev
ent.
The
Sprin
ging
PoA
w
ill o
nly
com
e in
to
effe
ct w
hen
the
dono
r lo
ses
men
tal c
apac
ity
or w
hen
a sp
ecifi
ed
even
t occ
urs.
A S
prin
ging
PoA
can
na
me
one
or m
ore
pers
ons
to d
ecid
e ab
out c
apac
ity a
nd
that
can
incl
ude
the
atto
rney
. The
re
mus
t be
a w
ritte
n de
clar
atio
n th
at th
e sp
ecifi
ed e
vent
has
oc
curr
ed.
If no
one
is n
amed
to
dete
rmin
e in
capa
city
or
the
pers
on(s
) na
med
can
not o
r ar
e in
capa
ble
of
dete
rmin
ing
men
tal
capa
city
, the
n tw
o m
edic
al p
ract
ition
ers
may
dec
lare
in w
ritin
g th
at th
e sp
ecifi
ed
even
t has
occ
urre
d.
A S
prin
ging
PoA
co
mes
into
eff
ect a
t th
e tim
e of
a s
peci
fied
occu
rren
ce, u
sual
ly
men
tal i
ncap
acity
. Th
e do
nor m
ay
revo
ke it
prio
r to
losi
ng c
apac
ity; i
t is
null
and
void
whe
n th
e do
nor d
ies.
Any
in
tere
sted
par
ty m
ay
appl
y to
the
cour
t for
an
ord
er te
rmin
atin
g a
Sprin
ging
PoA
.
Personal Directives
To a
ppoi
nt a
n ag
ent t
o m
ake
deci
sion
s ab
out
pers
onal
mat
ters
for
the
mak
er w
hen
he/
she
lose
s ca
paci
ty.
Writ
ten,
sig
ned,
dat
ed,
and
witn
esse
d. T
he
agen
t and
the
agen
t’s
spou
se c
anno
t be
witn
esse
s no
r can
th
e sp
ouse
of t
he
mak
er. T
here
are
oth
er
exce
ptio
ns.
The
mak
er m
ust h
ave
the
men
tal c
apac
ity to
un
ders
tand
the
natu
re
and
effe
ct o
f a P
D.
A P
D c
an n
ame
a pe
rson
to d
ecid
e ab
out m
enta
l ca
paci
ty. T
hat
pers
on m
ust c
onsu
lt w
ith a
phy
sici
an
or p
sych
olog
ist
befo
re m
akin
g th
e de
term
inat
ion.
H
e/sh
e m
ust s
ign
a D
ecla
ratio
n of
In
capa
city
form
, w
hich
mus
t be
kept
by
the
phys
icia
n or
ps
ycho
logi
st. A
cop
y of
this
form
mus
t be
give
n to
the
mak
er,
amon
g ot
hers
.
If no
one
is n
amed
to
det
erm
ine
inca
paci
ty, t
hen
two
serv
ice
prov
ider
s,
one
of w
hich
mus
t be
a p
hysi
cian
or
psy
chol
ogis
t m
ay m
ake
the
dete
rmin
atio
n.
They
mus
t sig
n a
Dec
lara
tion
of
Inca
paci
ty fo
rm,
whi
ch m
ust b
e ke
pt
by th
e ph
ysic
ian
or
psyc
holo
gist
. A c
opy
of th
is fo
rm m
ust b
e gi
ven
to th
e m
aker
, am
o ng
oth
ers.
The
Pers
onal
D
irect
ive
ends
w
hen
the
mak
er
>di
es,
> re
voke
s it,
>
rega
ins
capa
city
;
whe
n th
e ag
ent d
ies
or q
uits
; or
whe
n a
cour
t ord
ers
that
it c
ease
s to
hav
e ef
fect
.
CA
PAC
ITY
MAT
TERS
—ELE
MEN
TS O
F LE
GA
L TO
OLS
M
arch
20
15 L
egal
Res
ourc
e Ce
ntre
of A
lber
ta L
td.
Why
Form
aliti
esCa
paci
tyW
ho D
ecid
esO
ther
D
ecis
ion-
Mak
ers
Dur
atio
nSupported Decision-Making
To a
ppoi
nt a
su
ppor
ter t
o he
lp
mak
e de
cisi
ons
abou
t pe
rson
al m
atte
rs. I
t ca
nnot
be
used
for
help
with
fina
ncia
l m
atte
rs.
A S
uppo
rted
D
ecis
ion-
Mak
ing
Auth
oriz
atio
n fo
rm is
co
mpl
eted
. The
form
is
ava
ilabl
e on
line
and
from
the
Publ
ic
Gua
rdia
n’s o
ffic
e.
The
supp
orte
d ad
ult
mus
t hav
e m
enta
l ca
paci
ty.
A S
uppo
rted
D
ecis
ion-
Mak
ing
Auth
oriz
atio
n en
ds
>w
hen
the
supp
orte
d ad
ult s
igns
a
term
inat
ion
form
, >
whe
n hi
s/he
r ca
paci
ty b
ecom
es
furt
her d
imin
ishe
d an
d a
Cour
t ap
poin
ts a
Co-
Dec
isio
n-M
aker
, or
>w
hen
he/s
he lo
ses
capa
city
alto
geth
er.
Then
, a P
erso
nal
Dire
ctiv
e w
ould
com
e in
to e
ffec
t or t
he
cour
t cou
ld a
ppoi
nt a
gu
ardi
an.
Co-Decision-Making
To a
ppoi
nt a
co-
deci
sion
-mak
er to
he
lp m
ake
deci
sion
s ab
out p
erso
nal
mat
ters
. It c
anno
t be
used
for h
elp
with
fin
anci
al m
atte
rs.
A c
ourt
ord
er is
re
quire
d to
app
oint
a
co-d
ecis
ion-
mak
er.
The
assi
sted
adu
lt ha
s di
min
ishe
d m
enta
l ca
paci
ty, b
ut c
an s
till
mak
e de
cisi
ons
abou
t pe
rson
al m
atte
rs w
ith
supp
ort.
The
prop
osed
ass
iste
d ad
ult m
ust t
ake
part
in a
Cap
acity
A
sses
smen
t Rep
ort
(CA
P), w
hich
is
com
plet
ed b
y a
med
ical
doc
tor,
psyc
holo
gist
, or
othe
r hea
lth c
are
prof
essi
onal
trai
ned
to
be a
cap
acity
ass
esso
r.
Prio
r to
a co
urt
appl
icat
ion,
the
pape
rwor
k is
su
bmitt
ed to
a R
evie
w
Off
icer
(RO
) with
th
e O
ffic
e of
the
Publ
ic G
uard
ian.
The
RO
mee
ts w
ith th
e pr
opos
ed a
ssis
ted
adul
t, no
tifie
s ce
rtai
n fa
mily
mem
bers
ab
out t
he a
pplic
atio
n,
and
prep
ares
a re
port
fo
r the
cou
rt. T
he R
O
cann
ot s
hare
the
CA
P w
ith o
ther
s.
A C
o-D
ecis
ion-
Mak
ing
Ord
er c
ontin
ues
until
>
the
assi
sted
adu
lt si
gns
a W
ithdr
awal
of
Con
sent
form
w
ith th
e co
urt,
>a
Gua
rdia
nshi
p O
rder
is g
rant
ed, o
r >
a Pe
rson
al D
irect
ive
com
es in
to e
ffec
t.
CA
PAC
ITY
MAT
TERS
—ELE
MEN
TS O
F LE
GA
L TO
OLS
M
arch
20
15 L
egal
Res
ourc
e Ce
ntre
of A
lber
ta L
td.
CA
PAC
ITY
MAT
TERS
—ELE
MEN
TS O
F LE
GA
L TO
OLS
M
arch
20
15 L
egal
Res
ourc
e Ce
ntre
of A
lber
ta L
td.
ELDER ABUSE: IF PLANS HAVEN’T BEEN MADE March 2015 Legal Resource Centre of Alberta Ltd.
Elder Abuse: If Plans Haven’t Been Made
Legal Remedies when the Best Options Are Not in Place
In the absence of a Power of Attorney someone, usually a family member, must make a court application to get a trustee, guardian, or both, appointed.In the absence of a Personal Directive
Financial Issues: Trusteeship
In the absence of a Power of Attorney
someone must make a court application for a Trusteeship
Represented Adult Trustee
Check for possible alternatives: Are there any informal trusteeships in place?
A candidate for trustee
> must be at least 18 years of age
> must consent to act as trustee in this situation
> must satisfy the court that he/she is suitable and will act in the best interests of the adult
> is often a family member or friend
Once appointed, a trustee
> can do almost everything in relation to financial matters that the represented adult would do if he/she had capacity, with access to and control over all money and financial information of the represented adult
> must keep careful records of all transactions
> must always act in the best interests of the represented adult while in accordance with the Trusteeship Order and the Trusteeship Plan, as approved by the court.
Personal Issues: Guardianship
In the absence of a Personal Directive
someone, usually a family member, must make a court application for
a Guardianship
Represented Adult Guardian
Check for possible conflicts: Is there a Personal Directive? Are there Supported Decision-Making Authorizations or Co-Decision-Making Orders in place?
ELDER ABUSE: IF PLANS HAVEN’T BEEN MADE March 2015 Legal Resource Centre of Alberta Ltd.
Candidates for guardian
> must be at least 18 years of age
> must consent to act as guardian in this situation
> must satisfy the court that he/she is suitable and will act in the best interests of the adult
> should be someone familiar with the represented adult’s values, preferences, opinions, and religious and cultural heritage
> is often a family member or friend
> should have been in regular contact with the proposed represented adult
Once appointed, a guardian—depending on the adult’s needs and areas where his/her capacity is lacking—may make decisions regarding:
> health care
> where and with whom the adult can live
> with whom the adult may associate
> social activities
> educational or vocational training and/or employment
> any legal (non-financial) matters
FOR MORE INFORMATION ON TRUSTEESHIP AND GUARDIANSHIP IN ALBERTA:
› contact the Alberta Office of the Public Guardian
› read the Centre for Public Legal Education’s booklet about The Adult Guardianship and Trusteeship Act
To prevent the many challenges associated with having to apply for trusteeship or guardianship:
Plan aheadfor yourself—and for any older adult in your care—
well before incapacity.
ELDER ABUSE: LET’S TALK March 2015 Legal Resource Centre of Alberta Ltd.
Elder Abuse: Let’s Talk
Getting Past Resistance
> Every adult should plan in advance.
> Planning in advance is the only way to maintain control over end-of-life decisions.
> Planning for the future does not take decision-making power out of our hands in the present.
> You can change your mind at any time.
> You can always say, “My lawyer suggested I talk to you.”
The Single Most Important Step in Advanced Planning: Talking!
Why?
> Others may not fully understand your wishes after you lose capacity to express them.
> It will help you think about what you want.
> It will help your loved ones make difficult decisions.
> It will save money.
> It will save insecurity and grief.
> It may even bring your family closer together.
Before beginning the conversation:
> Ask permission to discuss the topic.
> Know the legal tools and options.
> Select an appropriate time and setting.
> Be prepared for difficult moments.
> Agree on an attendance list.
> Agree on an agenda.
Beginning the Conversation
Communication principles:
> One person needs to take the lead in the conversation.
> Be good listeners and be patient.
> Value each conversation participant and each contribution to the discussion.
> Value each elder.
Suggested agenda:
1. Identify current advisors.2. Describe current health status.3. Identify current documentation.4. Describe current financial picture and plan.5. Identify difficult or complicated issues.6. Planning ahead: Power of Attorney;
Personal Directive; supported-decision-making, co-decision-making, informal trusteeships; Will.
7. Determine a shared understanding for post-capacity.
8. Next steps: What follow-up is necessary and who is responsible for it?
Recommended